Case Law Details
Air Asia (India) Private Limited Vs Commissioner of Customs (Appeals) (CESTAT Bangalore)
Matter relates to refund of duty paid consequent to re-classification of the aircraft parts imported. Commissioner’s (Appeals) rejected the appeals by holding that appellant did not deposit 7.5% of the duty or penalty disputed as per section 129 E of the customs act.
It was argued on behalf of the appellant that the entire amount of duty was paid under protest during the course of assessment of the respective Bills of Entry. A worksheet indicating the date of payment of duty along with details of the challan, were filed. Hence, there is no need for payment of 7.5% of duty as pre-deposit. This factual position was not disputed be the department.
CESTAT concluded that the appellant has paid the entire duty under protest during the course of assessment of Bills of Entry. From the records of earlier period, it is found that Commissioner (Appeals) has decided this issue of merits. Matter is remanded to the commissioners (Appeal) for fresh consideration.
FULL TEXT OF THE CESTAT BANGALORE ORDER
Heard both sides and perused the records.
2. These appeals are filed against Order-in-Appeal 1655 to 1711/2022 dated 24.08.2022 passed by the Commissioner of Customs (Appeals), Bangalore.
3. The learned Commissioner(Appeals) has rejected all these appeals on the ground that the appellants had not complied with the provisions of Section 129E of the Customs Act, 1962 by depositing 7.5% of the duty or penalty disputed.
4. Learned advocate appearing for the appellant has submitted that the issue relates to refund of duty paid consequent to re-classification of the aircraft parts He submits that the entire amount of duty was paid under protest during the course of assessment of the respective Bills of Entry. In support, he placed a worksheet indicating the date of payment of duty along with details of the challan. Therefore, there is no need for payment of 7.5% of duty as pre-deposit, as erroneously observed by the learned Commissioner(Appeals) in the impugned order. He further submits that the appellants were also not given reasonable opportunity to present their case and the orders were passed ex-parte. For the earlier period, on similar facts, the ld. Commissioner(Appeals) had considered the issue on merit and allowed their appeals.
5. Learned AR for the Revenue does not dispute the payment of duty under protest.
6. We find that the learned Commissioner(Appeals) has not decided the issue on merit and dismissed the appeals only on the ground of failure to make pre-deposit of 7.5% of the duty; whereas in the present case, the appellant has paid the entire duty under protest during the course of assessment of Bills of Entry. Also, we find from the records that for earlier period, the Commissioner(Appeals) on similar facts considered their appeals on merit. In these circumstances, we set aside the impugned orders and remand the matter to the Commissioner(Appeals) to decide the issue afresh on merit after affording an opportunity of hearing to the appellant. All issues are kept open. Appeals are allowed by way of remand.
(Order dictated and pronounced in Open Court.)
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